The death penalty: End it, do not mend it

By Saul Lehrfreund

The sudden executions on April 29 of Teng Kuo-liang (鄧國樑), Liu Yen-kuo (劉炎國), Tai Wen-cheng (戴文慶) and the brothers Tu Ming-lang (杜明郎) and Tu Ming-hsiung (杜明雄) has once again brought Taiwan’s policy on capital punishment into focus and attracted international criticism that affects the nation’s reputation. There are serious concerns that the provisions of the International Covenant on Civil and Political Rights (ICCPR) were not adhered to in these five cases, nor the cases of the 21 people who have been put to death since executions resumed in 2010.

The situation in Taiwan needs to be understood in the wider international context, where 106 states worldwide have abolished the death penalty. There are only 39 countries that have carried out an execution since 2003, and the remaining 52 countries where capital punishment is still legal have not carried out an execution for at least 10 years and are classified as de facto abolitionists.

The debate about the efficacy or otherwise of the death penalty has moved beyond the narrow view that each country or territory has the right to retain the death penalty as a tool of its criminal justice system on the grounds of purported deterrence or the cultural expectations of its citizens. Instead, the majority of governments consider that the death penalty, however administered, violates universally accepted human rights norms embodied in the ICCPR.

Furthermore, experience now informs that no system of capital punishment (however sophisticated it is) can be devised that does not produce error and punishment that is arbitrary, cruel and inhuman. Countries that still retain the death penalty are now challenged with convincing, if not insurmountable evidence of the human rights abuses, inevitable mistakes and inhumanity that accompany it in practice.

In 2009, Taiwan took the bold and progressive step of ratifying the ICCPR as a matter of domestic law, giving the rights enshrined in the covenant legal force in Taiwan. The government has voluntarily agreed to conform to the standards and objectives of the ICCPR, not only in restricting the scope of the death penalty, but also to ensure all the fair trial provisions and other provisions guaranteeing the right to seek clemency are respected in capital cases.

While improvements have been made since the ICCPR came into force, a detailed report reviewing Taiwan’s legal obligations under the covenant by the UK-based Death Penalty Project in association with the Taiwan Alliance to End the Death Penalty suggests that Taiwan’s system of capital punishment still retains significant room for improvement. The report is to be unveiled in Taipei today.

The report notes that the implementation of the ICCPR since 2009 has brought some progress and improvements toward the protection of the right to life and the right to a fair trial for capital defendants. However, the overall conclusion is that the death penalty remains a serious human rights problem and urgent reform needs to be made to the criminal and constitutional laws that regulate the use of the death penalty to enable Taiwan to fulfill its legal obligations.

These recent executions clearly go against the worldwide trend to restrict the use of the death penalty and to reduce the number of executions pending total abolition, and are in contrast with the obligations Taiwan has voluntarily accepted by ratifying the ICCPR and giving the rights enshrined legal force. The report concludes that unless Taiwan can satisfy the human rights standards to which it has committed, the death penalty should no longer be enforced.